HOOD, Chief Judge.
The parties to this appeal are husband and wife and are the parents of a little girl who is now about four years of age. After months of marital discord the parties separated, and in the trial court each sought custody of their daughter.
The trial lasted many days and is reported in over 2,000 pages of transcript. Each party sought to prove his or her qualification for custody of the child and the other's lack of qualification. To this end there was the testimony of the parties, their relatives and friends, and that of adult psychiatrists, a child psychiatrist, a psychologist, a doctor, a minister, a baby sitter, detectives, the guardian ad litem who had been appointed for the child early in the litigation, and others. All phases of the backgrounds and lives of the parties were fully explored.
The trial court in an extensive opinion reviewed the evidence, made some preliminary findings, and then made the following fundamental findings: (1) The child has always received excellent physical care and has never been neglected. (2) Each parent is devoted to the child. (3) Neither parent is disqualified to have custody by reason of any physical, mental or moral infirmity. (4) That the best interests of the child will be served by awarding custody to the father.
In making this last finding, the court said:
In accordance with the court's findings, judgment was entered awarding permanent custody to the father. The mother was given the right of visitation two afternoons each week and the right to have the child with her every other week end. In addition, the mother was given temporary custody during the summer months between the closing and the opening of school.
The mother has appealed. Errors are alleged with respect to the exclusion of certain evidence and with respect to the appointment, and testimony, of the guardian ad litem; but we find no substantial error regarding these matters. The chief claim of error essentially is that in view of the finding that the mother was not unfit to have custody, it was error as a matter of law to deny custody to her and that such denial constituted an abuse of discretion.
The mother's argument is that the law requires that the custody of a child of tender years be awarded the mother where she is found to be a fit custodian and where there is no finding that her custody would endanger the child. As a corollary she argues that it was an abuse of discretion not to award custody because "the presumption that small children are better off with their mother is entitled to weight";
Since what has been termed the classic decision on the subject, Chapsky v. Wood, 26 Kan. 650 (1881), most jurisdictions, including this jurisdiction,
From what we have said, we are forced to the conclusion that the law of this jurisdiction does not compel the award of custody of a small child to the mother, although she is a fit custodian, if the trial court on consideration of all the evidence, concludes that the best interests of the child will be served by awarding custody to the father. And we cannot say that the failure to award custody to the mother was an abuse of discretion. To do so would be to substitute our collective judgment for that of the trial judge. The law entrusts that grave decision to the sound judgment of the trial court. We find nothing in the record which would justify us in disturbing it.